Care and Protection of Laurent , 87 Mass. App. Ct. 1 ( 2015 )

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14-P-189 Appeals Court
CARE AND PROTECTION OF LAURENT.1
No. 14-P-189.
Middlesex. September 5, 2014. - January 9, 2015.
Present: Green, Graham, & Katzmann, JJ.
Minor, Care and protection. Parent and Child, Care and
protection of minor. Practice, Civil, Care and protection
proceeding, Findings by judge.
Petition filed in the Middlesex County Division of the
Juvenile Court Department on October 17, 2011.
The case was heard by Kenneth J. King, J.
David J. Cohen, Committee for Public Counsel Services, for
the mother.
Richard A. Salcedo for Department of Children and Families.
Julia A.B. Pearson for the child.
GRAHAM, J. On October, 17, 2011, the Department of
Children and Families (department) filed a care and protection
petition in the Middlesex County Division of the Juvenile Court
1
A pseudonym, as are all the children's names in this
decision.
2
Department pursuant to G. L. c. 119 § 24, alleging Laurent was a
child in need of care and protection. On that day, the trial
court judge granted temporary emergency custody of Laurent to
the department. The department later placed him in foster care,
where he remained through the conclusion of the trial.
Trial on the department's petition occurred over seven non-
consecutive days, beginning on November 1, 2012, and concluding
on January 3, 2013. On February 21, 2013, the judge found the
mother unfit, essentially, on the basis that she was too
cognitively limited to parent the child. Accordingly, the child
was committed to the custody of the department, with
reunification as the plan.
On appeal, the mother contends that the judge's findings
regarding her parenting deficiencies, taken as a whole, do not
support a conclusion that the child was at risk of serious harm,
and thus in need of care and protection.2 We agree with mother
and, accordingly, reverse the judgment.
1. Background. We summarize the material facts from the
judge's extensive findings, which are supported by the evidence,
and essentially undisputed.
2
The judge concluded that although Laurent's father
attended court hearings and paid child support, he had never
visited Laurent since the case had begun; hence, he lacked an
ongoing relationship with Laurent and could not care for him.
3
Laurent is one of five children born to the mother, who was
forty years old at time of trial. The mother experienced
significant trauma and neglect as a child. As a child, the
mother contracted lead poisoning, which resulted in severe
developmental disabilities. In addition, the mother sustained a
skull fracture when she was eight years old. When she was
fourteen, she was placed in department custody due to abuse and
neglect. She was placed in foster care and residential programs
through her teens. When the mother turned eighteen years old,
she was released from department custody, and eventually
returned to live with her mother.
The mother has an extensive history of alcohol and cocaine
abuse. In addition, she has been diagnosed with attention
deficit hyperactivity disorder (ADHD), anxiety, and "executive
function impairment" (cognitive impairments), all of which
significantly compromise her ability to understand, process, and
retain information. The mother's cognitive impairments
presented challenges that led to an unsuccessful school career.
However, after attending a residential home in her teens and the
Learning Prep School in the West Newton area of Newton, she
obtained her graduate equivalency degree. Moreover, she has
been gainfully employed in the past, and has resided at the same
address for the five years prior to trial. At the time of the
trial, the mother was unemployed, receiving cash benefits from
4
the State, section 8 housing assistance, and supplemental
nutrition assistance program benefits.
The mother's four other children, ages fourteen through
twenty-one at the time of trial, have been involved with the
department, and all of them have been adopted. Her oldest three
children were adopted when they were very young by a New
Hampshire family with which the mother remains in contact and
visits several times each year. The mother lost custody of her
fourth child, Bill, after the department found that the mother
seriously neglected him while under the influence of alcohol and
cocaine. Bill was adopted by a family with whom the mother does
not have contact.
Laurent, nine years old at the time of the trial, has been
diagnosed with ADHD, an adjustment disorder with mixed anxiety,
depressed mood, obesity, and asthma. At the time of the trial,
Laurent was prescribed Ritalin and Guanfacine to treat ADHD,
Albuterol and Flovent to treat his asthma (with medication
administered by inhaling through a nebulizer), Clonidine as a
sleep aid, and Zyrtec, an over-the-counter allergy medication.
While Laurent was in the mother's care, he had not learned how
to use the nebulizer properly.
The department's first supported G. L. c. 119, § 51A
(§ 51A), report was in June, 2010. The department opened the
investigation following a § 51A report that Laurent ran out of
5
the house looking for help because he could not wake up the
mother, who had consumed alcohol, and had accidentally ingested
some of her son's medication. The department supported
allegations of neglect following this incident and assigned a
social worker, Eric Rollins, to meet with the mother at least
once per month. The meetings between Rollins and the mother
were generally positive and Rollins considered closing the
mother's case because he was not concerned that Laurent was
abused or neglected.
However, on October 15, 2011, the department commenced an
investigation following a § 51A report that led to the instant
proceedings. In the early hours of October 15, 2011, the mother
called the police and reported that Laurent's father had come to
her house and that an altercation had ensued during which he had
attempted to strangle her. She further informed the police that
Laurent had left the home with father without her permission.
Police officers responding to the mother's report found her
and Laurent locked out of the house, but did not confirm any
marks or bruises on the mother's neck. The mother and Laurent
were transported to the police station. Later, department
investigators arrived at the police station and determined that
the mother appeared to be highly intoxicated. After
interviewing the mother, and over her protestations, the
department investigators took Laurent to an emergency foster
6
home pending the filing of the temporary custody petition by the
department. Two days later, the department was granted
temporary custody of Laurent. Thereafter, the department moved
Laurent to his second foster home, where he stayed for two
months before being placed in his current foster home.
Following Laurent's placement in foster care, the
department initially supervised weekly one and one-half hour
visits between Laurent and the mother, which later became
unsupervised and were extended to close to three hours. At the
time of trial, Laurent visited with the mother overnight once
per week.3
Since Laurent's removal from her care, the mother obtained
a restraining order against the father for domestic abuse, and
the father has not been in the mother's home since the October,
2011, incident. In addition, the mother has received individual
counselling and attended department sponsored meetings designed
to improve her parenting skills and to address issues of anger
management, substance abuse, and relapse prevention. At trial,
there was no evidence presented that domestic violence or
substance abuse, the issues that spawned the department
investigation, was still present in the mother's life.
3
The visits had been briefly stopped due to concerns that
Laurent was falling asleep at school because he would stay up
too late and watch television while in the care of his mother.
7
The mother has also learned to prepare healthier meals for
Laurent and relies less on fast food and sweets.4 She has also
sought and received support for improving her parenting skills
from Aid for Incarcerated Mothers, and, since mid-2012, from the
Department of Developmental Services (DDS). She meets twice
each week with DDS providers with whom she has a positive
relationship as part of an individualized action plan to address
her neurological deficits.
Meanwhile, most of the issues related to Laurent's health
and education have been resolved. Prior to his removal, the
mother requested an educational evaluation of him because she
"had concerns about how he was learning." The evaluation
resulted in an educational enrichment plan that Laurent now has
in place through which his teachers and adjustment counsellor
interacted regularly with the mother. In the fall, 2010,
Laurent was in a reading recovery program for first graders, and
later was referred for one-on-one tutoring at the Harvard
Graduate School of Education, Language, and Literacy Program.
In September, 2011, he began receiving one-on-one tutoring twice
4
When Laurent was placed in foster care, the mother
recognized that he was overweight. However, she believed that
his weight gain was due to the medication he was prescribed,
including Clonidine, Ritalin, and steroids, which he had had
prescribed for between one and three months due to a flare up of
his asthma. The mother informed the court investigator that she
would work with Laurent's pediatrician to be sure he ate healthy
foods and got enough exercise.
8
per week. He attends an after school program, can complete his
homework with staff support, and has a mentor.
In addition, Laurent is no longer overweight and "looks
like a healthy eight year old." His foster parents changed his
diet, and he engages in vigorous exercises, including biking,
swimming, and karate.
The department had "intended to transition [Laurent] to the
care" of the mother, but reversed itself following "reports from
the school, the in-home team, his foster mother, and his
therapist." In the reports, members of the department's in-home
team noted that, following Laurent's visits with the mother, his
clothes smelled of smoke. In addition, they reported that
Laurent's use of the nebulizer exceeded the recommended dosages.
2. Determination of parental unfitness. On February 21,
2013, the judge published his conclusion that the department had
proved by clear and convincing evidence that Laurent was in need
of care and protection, which was followed, on July 22, 2013, by
the judge's findings of fact, rulings of law and order for
judgment. The judge concluded that the evidence, taken as a
whole, was "adequate, even if just barely" to support a finding
of need of care and protection. The judge relied, principally,
on three categories of evidence to support his conclusion that
the mother was unfit to parent Laurent: (1) the lack of
structure in the home including difficulty in assisting Laurent
9
with current and future school work; (2) the issues regarding
Laurent's dietary and exercise needs; and (3) Laurent's
difficulties in administering his asthma medication. In
addition, the judge based his decision on the mother's smoking
in Laurent's presence, and Laurent's expressed preference to
live with his half-siblings' adoptive family in New Hampshire.
3. Discussion. Parents have a "fundamental liberty
interest . . . in the care, custody, and management of their
child," Santosky v. Kramer, 455 U.S. 745, 753 (1982), that does
not go away even when they become "something less than ideal
caretakers." Care & Protection of Yetta, 84 Mass. App. Ct. 691,
695 (2014). To interfere with the ties between parents and
their children, the State has to prove parental unfitness with
"clear and convincing evidence." Adoption of Carlos, 413 Mass.
339, 348 (1992). The parental unfitness inquiry "means more
than ineptitude, handicap, character flaw . . . or inability to
do as good a job as the child's foster parent," Care &
Protection of Yetta, supra, but rather whether "the parent is so
bad as to place the child at serious risk of peril from abuse,
neglect, or other activity harmful to the child." Care &
Protection of Bruce, 44 Mass. App. Ct. 758, 761 (1998).
"[T]he central judgment does not concern the [mother's]
merits or demerits, but whether, in all the circumstances
(including consideration of those merits or demerits), [she] has
10
the capacity to act as a fit parent." Adoption of Nicole, 40
Mass. App. Ct. 259, 262 (1996). "Parental unfitness must be
determined by taking into consideration a parent's character,
temperament, conduct, and capacity to provide for the child in
the same context with the child's particular needs, affections,
and age." Adoption of Mary, 414 Mass. 705, 711 (1993).
Further, "the assessment of parental fitness must focus on
the children actually involved in the proceedings, with their
specific needs, interests and requirements, and not on some
hypothetical child or children." Care & Protection of Olga, 57
Mass. App. Ct. 821, 830 (2003). "Fitness to act as a parent, in
statutory and decisional context, involves inquiry not only into
the capacity of the biological parent but into the best
interests of the child." Adoption of Nicole, 40 Mass. App. Ct.
at 262. Parental fitness and the child's best interests are
interrelated inquiries and are considered together. See
Petition of New England Home for Little Wanderers to Dispense
with Consent to Adoption, 367 Mass. 631, 641 (1975) ("the tests
are not separate and distinct but cognate and connected").
Here, none of the judge's findings in this case was clearly
erroneous. Each finding was adequately supported in the record.
It does not follow, however, that the findings, taken together,
proved parental unfitness by clear and convincing evidence. For
the evidence of parental unfitness to be clear and convincing,
11
it "must be sufficient to convey a high degree of probability
that the proposition is true," Adoption of Rhona, 57 Mass. App.
Ct, 479, 488 (2003), quoting from Adoption of Iris, 43 Mass.
App. Ct. 95, 105 (1997), which requires "a degree of belief
greater than the usually imposed burden of proof by a
preponderance of the evidence, but less than the burden of proof
beyond a reasonable doubt imposed in criminal cases." Care &
Protection of Yetta, 84 Mass. App. Ct. at 696, quoting from
Custody of Eleanor, 414 Mass. 795, 800 (1993).
While the judge claimed several factors were applicable to
the case, it is clear that the ultimate determination of
unfitness rested primarily on the judge's assessment that the
mother's cognitive disabilities would impact her ability to
"understand" and "follow through on her understanding" of
Laurent's needs if he were returned to her care. The judge
found that there was no evidence that the mother's substance
abuse problems and her involvement in abusive relationships, the
issues which caused the department to remove Laurent from the
mother's care, and which were responsible for the loss of at
least one of the mother's other children, are currently concerns
in the mother's life. Similarly, the issues surrounding
Laurent's weight have largely been resolved, and Laurent is
currently doing well in school.
12
While we agree that the judge's findings present a general
source of concern for parental fitness, each is mitigated by
findings discounting such risks due to the mother's compliance
with her service plan, resulting in improvement in her parenting
ability. DDS services could continue to offer the mother
support for her parenting responsibilities.
The judge acknowledged the loving relationship between the
mother and Laurent and concluded that there was no evidence that
the lack of structure places Laurent's education at serious
risk. The mother recognized that Laurent had difficulty in
school, and ably advocated for his placement in an
individualized educational plan that helped him improve his
literacy.5
There are no findings that would support the conclusion
that any of the mother's present shortcomings, including her
failure to monitor properly Laurent's use of the nebulizer, or
her occasional use of tobacco in Laurent's presence, have caused
Laurent significant enduring harm.
5
The judge found that, "[i]n view of [Laurent's therapeutic
mentor] and considering that [the mother] sought out educational
services for [Laurent] and supported his attendance in the after
school program, the Court cannot conclude that her inability to
maintain structure at home places his education at serious
risk."
13
Laurent is no longer obese and has a "better understanding
of his dietary and exercise needs."6 Moreover, the mother has
started preparing more nutritious meals.7
In reaching a decision of parental unfitness, a judge need
not "wait for disaster to happen" and can use "past conduct to
predict future ability and performance." Custody of Michel, 28
Mass. App. Ct. 260, 269-270 (1990). Nevertheless, the inquiry
must focus on the mother's current ability to parent, Care &
Protection of Three Minors, 392 Mass. 704, 711-712 (1984), and
cannot rest on speculation. See Adoption of Yale, 65 Mass. App.
Ct. 236, 242 (2005). Speculation about the mother's future
ability to feed her child healthy food, for example, must stem
from "credible evidence." Cf. Adoption of Serge, 52 Mass. App.
Ct. 1, 7 (2001) (arguing that mother must base predictions that
her parenting will improve on credible evidence and not "faint
hope"). Here, the evidence points to the contrary.
As the judge noted, the department's case is "long on smoke
and short on fire." Nonetheless, the judge concluded that
"taken as a whole, the evidence is adequate, even if just
barely," to conclude that Laurent is in need of care and
6
It is worth noting that childhood obesity, lack of
parental help with the child's education, and overexposure to
television characterizes entire communities in Massachusetts.
7
We note that the judge did, however, express his concern
about the mother's ability to continue cooking healthy meals for
Laurent if he were returned to her custody.
14
protection because each piece of evidence exposes Laurent to
"some, albeit ill-defined, risk of harm." But some amorphous
harm that does not amount to "grievous shortcoming or handicaps"
is not sufficient. Care & Protection of Yetta, 84 Mass. App.
Ct. at 698, quoting from Adoption of Zoltan, 71 Mass. App. Ct.
185, 189 (2008). The evidence of mother's unfitness must be
"full, clear and decisive." Adoption of Rhona, 57 Mass. App.
Ct. at 488. In this case, the incremental risks to Laurent
simply do not add up to a substantial risk of harm.8
Finally, we are not persuaded that Laurent's sometimes
expressed preference to live with the New Hampshire family,9
which may be considered by the judge but does not carry
dispositive weight, see Custody of a Minor, 383 Mass. 595, 602
(1981), tilts the balance in the department's favor. The judge
found that Laurent's wishes are less a sign of his maturity and
more a reflection of his idealized version of the New Hampshire
home that he visits from time to time and where he has fun but
no schoolwork or household chores.
8
We note that if we were to embrace the judge's accounting
of harm, no evidence of improvement in the mother's parenting
skills would suffice as long as there is some residual risk
resulting from the mother's cognitive challenges.
9
Laurent had previously expressed his wish to return home
with his mother.
15
Judgment and order reversed.10
So ordered.
10
We do not reach the issue raised by the mother in her
brief of whether the judge improperly considered the "better"
care that could be provided to Laurent by his half-siblings'
adoptive family in New Hampshire because we conclude that, on
the record in front of us, the totality of the evidence does not
support clearly and convincingly a conclusion of parental
unfitness under G. L. c. 119, § 26.